Michelle Coleman, PhD Student in International Law at Middlesex University (London)

On 1 October 2017 a referendum vote in the Catalan region of Spain devolved into violence when police officers deployed by the national government attempted to prevent people from voting. According to some reports almost 900 people, including voters and potential voters, were injured. While recognising that there are disputed versions, this post follows the critics of the Spanish police’s actions, as described by the main NGOsand other academicbloggers.

This referendum asked the people of Catalonia whether they wanted the region to gain independence from Spain. This blog post explores the potential criminality that has arisen from participating in the referendum by organisers, voters and potential voters. Specifically, it will argue that participating in the referendum was not a per se criminal act. Participants could be investigated for crimes that occurred in the course of their participation, but not for the participation itself. Moreover, the police should not have targeted potential voters, using disproportionate force, because this violated the freedom of expression and did not fulfil the police’s duties of crime prevention or investigation.

Referendum’s Background and Constitutional Court Decision

Catalonia is an autonomous region in Northeastern Spain. The region’s quest for independence has a long history that has become more active in recent years. In January 2016, Carles Puigdemont was sworn in as the President of the Government of Catalonia. A staunch supporter of independence, he ran his campaign on the platform that he would hold a referendum on whether the region should become independent. The Spanish government has always opposed Catalan independence and the Constitutional Court found a previous move for Catalan independence to be unconstitutional in 2010.

On 19 September 2017 the Spanish Constitutional Court declared the proposed referendum unconstitutional on the grounds that there is no legal mechanism within Spanish law to allow a region to secede. They also held that the public prosecutor could investigate the leaders of the Catalan Parliament, as organisers of the referendum, for any potential crimes committed by organising the referendum.

Participating in an Unconstitutional Referendum is Not a Per Se Criminal Act

The Constitutional Court’s decision that the referendum was unconstitutional does not make participating in the referendum a criminal act. The decision merely means that the question that the referendum was asking was unconstitutional because there is no constitutional provision that allows for succession by referendum. As provided by the nullum crimen sine lege principle, an action is not a crime without a law criminally prohibiting that action at the time the action was committed. In Spain, there is no criminal law specifically prohibiting unconstitutional referendums, and because it is a civil law country, this law cannot be created by the Constitutional Court. Thus, the act of participating in the unconstitutional referendum is not a per se criminal act.

Just because there is no specific criminal law prohibiting unconstitutional referendums, does not mean that the act of holding or participating in such a referendum cannot result in a criminal charge. Holding or participating in the referendum may evidence a violation of an already existing criminal law. This is why the Constitutional Court stated that the public prosecutor could investigate the leaders of the Catalan Parliament; organising and holding the referendum may be evidence of treason, sedition, civil disobedience, misuse of public funds, and other crimes which already exist within Spanish criminal law. This is different however, from organising the referendum automatically becoming a criminal activity because the referendum’s topic has been held to be unconstitutional.

What About Voters or Potential Voters?

As explained above participating in the referendum itself is not a criminal offence. Further, while there is no fundamental right to vote in referendums, voting in a referendum is not in itself a criminal act, even if the referendum was held unconstitutional. Thus, voters and potential voters cannot be prosecuted for voting or attempting to vote in the referendum.

The situation for voters and potential voters is different from that of the organisers and Catalan leaders. Even without a right to vote in a referendum, voting itself is not a criminal act, it is merely an expression of opinion. Basically a referendum is someone is asking a question and someone else (a voter) providing their answer or opinion. This activity is protected under the right to freedom of expression. The fact that the referendum was declared unconstitutional does not change this; individual voters are still allowed to express their opinion on whether Catalonia should secede from Spain. Unlike organizing the referendum which could be evidence of crimes such as sedition, voting in the referendum does not have the same effect. Expressing an opinion against the Spanish government is not illiegal or criminal — people have been doing it for years. Thus, voters and potential voters merely participating in the referendum by stating their opinion are not committing a criminal act or providing evidence of a crime. They are exercising their right to express their opinions.

Of course, there can be some laws that were violated during the course of casting a vote. Among those crimes might be trespassing. Potential voters did not have proper permission to be on the property where the polling places were located. For example, many schools owned by the Spanish government. The Spanish government did not give permission for the public to use the school for holding an illegal referendum. Without proper permission, anyone entering the school for the referendum would be trespassing and could suffer criminal penalties. Whether trespassing occurred however was highly dependent on the situation. It would not occur in locations where the rightful owner of the property gave permission for the property to be opened to the public for the purpose of the referendum. Rightful owners have the ability to give permission for anyone to enter their property for any purpose they choose.

The Police Should Not Have Targeted Potential Voters

In an attempt to prevent the referendum from taking place, Spain’s paramilitary Civil Guard took charge of Mossos d’Esquadra (the Catalan police force). There were two ways for the police to prevent illegal elections from occurring: to focus on stopping the organisers and closing or preventing entry to any polling places or focus on potential voters and prevent them from entering a polling place or casting their vote. The first method focuses inward, on the referendum itself, while the second focuses outward on the general public. The police used both methods.

From the perspective of the Spanish government, closing or preventing entry to polling places may be a justified police action. The police are preventing crime by preventing an unconstitutional referendum, stopping individuals from trespassing in the polling locations, and perhaps even gathering evidence against organisers who may be liable. It is common to prevent property crime (such as trespassing) from occurring by protecting the property itself. This can be a legitimate method of suppressing an illegal action provided the police act within their normal powers. This can be done without focusing on potential voters outside of polling stations.

Police actions against voters and potential voters, who are not illegally inside polling locations, are not justified. Directing police actions toward potential voters wrongfully targets individuals who have not committed crimes. It punishes individuals by restraining them and restricting their movements and, at times, using violence against them. Essentially, targeting potential voters in the streets treats them in the same manner as those who are suspected of crimes. The result is not crime prevention or investigation but a stifling of freedom of expression. Yet, police officers may use force to restore public order. In that case, however, they should always comply with the necessity and proportionality requirements.

By focusing on the potential voters outside the occupied public buildings, the police acted as though they were the targets of crime prevention. The police took their crime prevention duties too far by targeting those whose actions were not criminal. In so doing the police exceeded the scope of their powers and reacted violently towards thousands of individuals who were merely expressing their fundamental right to freedom of expression.

Summer 2017 has come to an end and, as every year, it is time for the post-facts evaluation for the European Union and its Mediterranean Member States on the ongoing so-perceived migration crisis. Summer is in fact generally considered the harshest season of the year in terms of inflows’ management.

In the last few months, the European Union has strengthened its policy of partnership with third countries – especially with African countries – first and foremost with Libya. The specific political situation in Libya, together with the alleged violations of human rights against migrants in the management of the Central Mediterranean route, have caused some concerns by institutions, international organisations and, most of all, the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda. This post aims to provide a critical overview of the ‘lights and shadows’ relating to the recent management’s policy of the European Union on the central Mediterranean route in partnership with Libyan authorities.

The 13th report on Libya’s situation addressed by the ICC Prosecutor Office to the UN Security Council

The report also mentions data from the International Organization for Migration (hereinafter “IOM”), according to which a significant number of migrants have attempted to reach the Italian coasts from Libya throughout the whole 2016.[3] The alarming issue – as reported – relates to the large amount of unofficial detention centres apparently arranged in Libya for migrants and, overall, to the inhumane conditions and poor treatment of detained migrants.[4] According to the allegations considered by the Prosecutor, migrants were victims of serious crimes, involving any form of violence (from torture to sexual violence), human trafficking, exploitation and smuggling by both State and non-State actors, including militias.[5]

The report concludes on migration’s matters by recalling the mutual engagement on the side of the ICC and the European Union as a whole (together with several international agencies and the Libya’s Government of National Accord) aiming at sharing information and collect elements related to the alleged crimes against migrants in Libya, as well as to the conduct of facilitation and financing of illegal migration through Libya and the Central Mediterranean route.

The Prosecutor’s statement, together with the alarming situation in Libya, reveals the fragmented and alarming framework which the EU must deal with on the “externalization” of the migration matters.

The European Union summer agenda on central Mediterranean route

The 6th of September, the EU Commission (hereinafter “the Commission”) submitted its 5th Progress Report on the Partnership Framework with third countries under the European Agenda on Migration. The Report specifically deals with the co-operation with Libya on migration through the Central Mediterranean route and sums up the main steps recently taken by the European Union.[6] After the apparently ‘successful’ implementation of the EU – Turkey agreement on the Balkan route, which has reduced the pressure on Greek borders, the Report focuses on the Italian situation, considering the massive inflows from some African states through the Libyan route. The report recalls the IOM data, showing the downward trend of arrivals via the Central Mediterranean route in comparison with summer 2016 as a positive consequence of the EU- funded actions, including the improved co-operation with Libya in border control activities.

As the Commission pointed out, the strategy of reducing outflows and enhancing security and stability implies a presumably successful combination of factors, namely: the cooperation in monitoring and increasing borders’ control, counter- terrorism activity and national security prevention through the improvement of the EUBAM Libya programme, the involvement of North African countries authorities in anti–smuggling and anti–trafficking programmes, such as the EUNAVFOR Med Operation Sophia and the SEAHORSE Mediterranean Project.

By increasing its material support to international organisations and strengthening the partnership with North African countries, the Commission aims to grant a satisfactory standard of protection to migrants and refugees and assist individuals in voluntary return from Libya to countries of origin. The pragmatic cooperation in the field of assisted and voluntary returns seems to be functional to the ‘discouraging’ policy, adopted by the European Union to ensure the asylum system’s integrity by reducing irregular movements. On the other hand, the Commission continuously stresses the importance for Members States to implement resettlement policies for those in need of international protection (while waiting for the announced reform of the European Common Asylum Legislation), also through the assistance provided by the UN forces.

Except for the EU-Turkey agreement’s experience -whose consequences in terms of human rights implications are not entirely clear yet– this practice, known as the ‘externalization of borders scheme’, is relatively new, at least for the European Union. It might imply several critical issues. Firstly, the so called ‘assisted voluntary return’ policy, which seems to base the entire externalization partnership, may raise some issues in terms of compatibility with the principle of non–refoulement, depending on the different situations of countries of origin and transit.[8] In fact, the policy of massive voluntary returns does not grant a satisfactory case by case analysis of individuals’ entitlement of international protection, hence it risks to go beyond the limits of the principle of protection against return to a country where a person has reason to fear persecution, as established by several international instruments relating to refugees, both at the universal and regional levels.[9] Secondly, concerning the ICC Prosecutor’s statement and report, the shared management of such a sensitive matter with a third country facing a serious political instability, such as Libya, might lead to grave consequences in case of perpetrations of international crimes. The institutional agenda of the EU summits, however, does not seem to have these issues at the heart, notwithstanding the copious declarations made also during the last “restricted” Paris summit.

The solutions adopted by the European Union on the central Mediterranean route were originally the result of a short-sighted approach, reacting to an emergency. Nevertheless, the EU and its Member States should not ignore the ongoing violations allegedly committed against thousands of migrants in a climate of uncertainty about the identification of State and non-State actors’ responsibilities.

While the ICC Prosecutor expresses her Office’s concerns for the alleged human rights violation against migrants in Libya, the European Union tries to reinforce its partnership with African third countries, first and foremost with Libya, with the aim to ensure a prominent level of borders’ protection against illegal inflows, without, at least formally, forgetting its own core principles and duties on fundamental rights protection.

The EU should also respect its previous commitments with the ICC – and the International community as a whole -to cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority.

Europe’s role in the world and our responsibility at the international level in these turbulent times are growing’ and hopefully so as ‘the EU’s continued commitment to defending our shared values of freedom, democracy, the rule of law and respect for human rights, and to promoting these values in Europe and around the world.

The time for a new farsighted approach of the EU to migration matters might therefore have come.

[1] The report has been adopted pursuant Resolution 1970 (2011) of the UN Security Council (S/RES/1970 (2011).

[2] Statement of ICC Prosecutor to the UNSC on the Situation in Libya (08th May 2017), para25-29.

[4] Thirteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.

[5] Thirteenth Report of The Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.

[6] Fifth Progress Report on the Partnership Framework with third countries under the European Agenda on Migration, Brussels, 6.9.2017 COM(2017) 471 final, para 3.

[7] i.e,. additional funding and material support to Italy and to Libyan authorities to manage and prevent movements, readmission and resettlement agreements with some of countries of origin or transit, mobilisation of EU Agencies in cooperation with Libyan authorities to strengthen controls at the southern border, accelerate Assisted Voluntary Returns from Libya and Niger to countries of origin, working with the IOM.

The case of Charles Gard (better known as “Charlie”) originates in the unfortunate conditions of a baby boy suffering from an incurable disease, whose life-sustaining treatment have been withdrawn on 28 July 2017 in accordance with UK law, notwithstanding his parents’ contrary will and after a legal dispute conducted before UK Courts and at European level.

The last stage of the dispute has been the decision issued by the European Court of Human Rights, First Section (“ECtRH”, or “Court”) on 27 June 2017, declaring inadmissible the application lodged against the United Kingdom by Charles’s parents, also on behalf of their son, for alleged violations of Articles 2 (right to life), 5 (right to liberty and security), 6 (right to fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”, or “Convention”).

The Court’s declaration of inadmissibility forms part of the developing body of European decisions on end-of-lifesituations. The present post describes the facts of the case and the ECtHR’s assessment on the complaints raised under Article 2 and 8 ECHR, focusing on two aspects of the decision: the use of the criteria developed in the recent Lambert judgment to assess whether domestic law regulating passive euthanasia is compatible with the Convention; the choice of expressly dealing with the issue of limits to parental authority in end-of-life choices concerning minors – issue which is likely to animate future debates on end-of-life situations.

The case

Charles Gard was a baby boy suffering from a very rare and severe disease determining a progressive deterioration of his health since the age of two months and severely affecting his brain, muscles and ability to breath, so to require, inter alia, artificial ventilation.

In January 2017, the possibility of treating Charles with a form of therapy previously used on patients with a similar disease was being evaluated. In the meanwhile, the baby suffered from a severe epileptic crisis. In the light of the irreversible damages suffered by Charles’ brain, clinicians agreed that the therapy would be futile and that it would only prolong the baby’s suffering. They informed Charles’ parents of this conclusion and applied the UK High Court for an order stating that it would be lawful, and in the patient’s best interests, for artificial ventilation to be withdrawn and palliative care provided.

Charles’ parents appealed on several grounds. Among them, it is worth recalling their argument according to which the ‘best interest of the child‘ criterion may be used only in cases whereby parents opposing a course of treatment do not have a viable alternative therapeutic option.[1]

– on Charles’ behalf and on their own, of a violation of Article 2 ECHR (right to life), arguing that the hospital was blocking life-sustaining treatments and, thus, state authorities were violating their positive obligations to protect life;

– on their own behalf, of a violation of Article 8 ECHR (private and family life), alleging that there had been a disproportionate interference with their parental rights.

The Court’s assessment on the complaints under Articles 2 and 8 ECHR.

Article 2 ECHR (right to life)

When analysing whether the applicants had locus standi on behalf of their son, the Court took the opportunity to point out that in end-of-life situations involving minors the parents’ role ‘is […] arguably to be accorded greater weight’ than in cases (such as Lambert) whereby the unconscious patient had had the opportunity to lead an adult life and express his views on end-of-life situations.

As to the substantive issue raised under Article 2, the Court examined not only the applicants’ complaint that the hospital was blocking access to life-sustaining treatment, but also the complaint (raised only at domestic level) that Charles’ right to life would be violated if treating clinicians were to withdraw artificial ventilation against his parents’ will.

With reference to the first complaint, the Court recalled its previous case-law, according to which positive obligations under Article 2 may include the duty for the State to put in place an appropriate legal framework to deal with access to experimental treatment; However, this cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way (Hristozov and Others v Bulgaria 2012). As the United Kingdom has a regulatory framework to deal with access to experimental treatment, which ‘is derived from the relevant European Directives’, the Court concluded that the applicants’ complaint under this head was manifestly ill founded.

As to the complaint concerning the withdrawal of life-sustaining treatment (or ‘passive euthanasia’), the Court made use of the criteria elaborated by the Grand Chamber in Lambert and Others v France (GC 2015), according to which it should be assessed whether:

– A regulatory framework compatible with the requirements of Article 2 exists in domestic law and practice;

– The patient’s previously expressed wishes were considered, together with those of the persons close to him and the opinions of other medical personnel;

– There is the possibility to approach the courts in the event of doubts as to the best decision to be taken in the patient’s interests.

The Court concluded that the second complaint under Article 2 was also manifestly ill founded, considering the following reasons:

– The regulatory framework in place in the UK to deal with passive euthanasia is compatible with the requirements of Article 2 (as assessed in Glass v UK (dec) 2003, first case involving, inter alia, the withdrawal of life-sustaining treatment in a minor patient whose parents oppose the treating clinicians’ choices);

– A guardian had been appointed expressly for ensuring that Charles’ wishes were taken into account, and the opinions of all medical personnel and parties involved (including the parents) had been adequately considered;

– UK domestic rules do impose a duty on clinicians to apply to courts in the event of doubts.

Article 8 ECHR (right to respect for private and family life)

Under Article 8, the applicants complained that the alleged lack of respect for their parental will constituted a violation of their right to private and family life.

The Court acknowledged that there had been an interference with the applicants’ rights under Article 8. However, this would not constitute a violation of Article 8 if: it was “in accordance with the law”, it pursued a legitimate aim (or aims), and it could be regarded as “necessary in a democratic society”.

With regard to the first two criteria, the Court found that the interference was lawful and that it pursued a legitimate aim (i.e. the protection of “health and morals” and “rights and freedoms” of a minor). As for the necessity test, the Court recalled the applicants’ argument that interference with their parental rights based on the ‘best interest of the child‘ test was unnecessary. In response to that, on the one hand,the Court pointed out that ‘there is a broad consensus – including in international law- in support of the idea that in all decisions concerning children, their best interest must be paramount‘; on the other hand, it clarified that, according to its case law, the necessity test requires ‘consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures are “relevant and sufficient”’. Also in consideration of the margin of appreciation doctrine (according to which, the less consensus among the Member States, the wider their margin of appreciation) the Court concluded that the decisions taken by the domestic courts did not show any element of arbitrariness and dismissed the complaint as manifestly ill-founded.

Final remarks

This is the first occasion in which the Court has applied the criteria developed in Lambert v. France to evaluate the compatibility of domestic laws regulating passive euthanasia with the Convention.

The body of Court’s decisions on end-of-life situations cannot be considered, yet, as case law. Still, the choice of applying to the Gard case the conclusions reached in Lambert can be regarded as a wilful development in that direction. In fact, the Court analysed the complaint relating to the withdrawal of life-sustaining treatment even though this had been raised by Charles’ parents only before UK Courts: The choice of expressly dealing with this argument can be considered as an opportunity to apply the Lambert conclusions to a new case, thus reinforcing their ‘general criteria’ nature. Thanks to this choice, in future decisions on passive euthanasia cases the Lambert criteria might gain a more authoritative dimension.

In the Gard decision, the Court also considered the issue of limits to parental authority in end-of-life choices concerning minors. In analysing the applicants’ locus standi to raise a complaint under Article 2 on their son’s behalf, the ECtHR clarified that, in cases involving minors, the very early age of the patient is a factor that can be taken into consideration when determining the weight to be attributed to parents’ choices. At the same time, in analysing the complaint raised under Article 8, the Court pointed out that the ‘best interest of the child‘ criterion must always be paramount.

These clarifications are particularly welcome, if one considers that in the only previous comparable case (Glass v UK 2004) the Court had not explicitly confronted the issue of limits to parental authority in end-of-life choices concerning minors. Quite understandably, in the light of the context (i.e., a decision of admissibility, and not a judgment) the issue was approached with caution in Gard: however, it is now more likely that, in the future, other cases of this kind will be brought to the attention of the Court, when arguments concerning the limits to parental authority could play an even more relevant role.

Post-Doctoral Fellow, North-West University, South Africa; lecturer, the Law School of Tanzania

Introduction

This post exposes time-limitation obstacle facing private litigants in accessing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty).[1] Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant.

Following a significant level of silence on the stringent rule, this post is important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty, while at the moment the extension of the two months’ time window is denied on grounds that are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch this interpretation.

East African Court of Justice

The Court is established pursuant to article 9 of the EAC Treaty, as one of the EAC organs bestowed with a mandate of interpreting and applying the EAC Treaty (see art 23, 27(1)). The Court is composed of two Divisions – the First Instance Division (FID), which has jurisdiction over most matters, and the Appellate Division (AD), where matters initially dealt by the FID are considered for appeal, as well as applications for advisory opinions. Worth a mention, accessibility to the EACJ by private litigants, challenging the acts of EAC Member States, is one of the most modern features in the catalogue of international and regional courts.

It is now about sixteen years after EACJ’s official inauguration on 30 November 2001. In 2005 the EACJ received its first case concerning a power struggle for enacting EAC laws between the Council and the East African Legislative Assembly (EALA). The turning point to the Court’s fortune was in 2007, when EAC Treaty was hastily amended as a means of retaliation from Member States,[2] due to a judgment by the Court faulting the manner in which members of EALA from Kenya were elected (see Anyang’ Nyong’o v AG of Kenya).

The process of amending the Treaty was, however, nullified in EALS v AG of Kenya & Others, of which the Regional Bar Association successfully challenged the amendment process by contending that EAC citizens were not consulted over the proposed amendment; a process required by the Treaty.[3] Thus, the EACJ found the amendment process was contrary to the letter and spirit of the EAC Treaty, of which one of its founding norms requires a people-centered driven form of integration. Despite of the EACJ decision, the amended Treaty retained its legal force. Perhaps, the nature of the EACJ’s decision, which was in a declaratory form, had something to do with its weak implementation; which is a matter of another academic debate. Nevertheless, it is important to point out that EAC Member States, as most African states, have the tendency of not complying with the decisions of international bodies. Be it as it may, it was through that illegal-pronounced amendment that article 30(2) was inserted.

EACJ’s approach on article 30(2)

The stance of the EACJ over article 30(2) EAC Treaty is appreciatively conservative; the article is strictly interpreted within its generic context. Consequently, many fresh cases are on the verge of facing dismissal, as it is unrealistic for private litigants to have a full case ready for court registration within sixty days. Case preparation takes time and demands resources. The EACJ has jurisdiction over a region where the majority of the people are least advantaged and under resourced. By being uncompromised to the two-months’ time draconian rule, judges are therefore denying individuals access to justice.

However, in the early EACJ cases, where article 30(2) EAC Treaty was at the focal point of dispute, the FID used to condone it. In IMLU v AG of Kenya, for instance, the applicant accused Kenya of violating the EAC Treaty, for failing to prevent or punish the perpetrators of the violence occurred at Mount Elgon during the 2007 general election. Kenya refuted such allegations by objecting the time in which the applicant’s complaint was lodged. In its decision, the FID stated (at p. 10):

It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.

The above reasoning was the FID’s stance in the early few cases with time-limit concerns.[4] When those cases reached the AD, however, they all were overturned on the grounds that the EACJ does not have any mandate to stretch time limits; and that arguments on the application of the doctrine of continuing violation cannot be sustained since EACJ is not a human rights court, where the doctrine is relevant (see AG of Uganda v Omar Awadh). As it stands, no flexibility is seen from the EACJ yet to at least liberally interpreting article 30(2) EAC Treaty.

The AD’s position came at a time when minds of all those affiliated with the EACJ were fresh from the suspicious 2007 Treaty amendment, of which the AD was created. It was also the first batch of AD appointed judges who presided on the above appealed time-limit cases. While there is no evidence of the then AD judges lacking impartiality, speculations on the AD’s verification role over FID cannot be shrugged-off with ease.

A call for a purposive interpretation

Article 30(2) EAC Treaty should be interpreted in light of its object and maiden purpose.[5] The following are reasons for the call. First, before the faulted 2007 Treaty amendment, article 30(2) was not inserted purposely to allow private litigants to have their share in playing a role within EAC integration without restrictions. After inserting article 30(2), individuals are now not able to access the EACJ with comfort. In fact, the provision was inserted in a discriminatory manner, as it is only applicable to private litigants and not to other potential applicants, such as the EAC Secretary General.[6] Therefore, strictly interpreting article 30(2) of the EAC Treaty is against the maiden spirit of the Treaty of allowing EAC citizens to have a say in the activities of their economic bloc.[7]

Second, private litigants are key in spearheading integration goals through litigation on matters directly associated with integration. By strictly applying article 30(2) EAC Treaty, applicants will not easily access the EACJ, eventually denying them access to justice and hindering them from playing a crucial role in shaping the integration. A society such as that of the EAC where most indigents are illiterate and legal services are scarce, a time-window of sixty days is minute. One would take about six months and above to gather evidence, jotting-down pleadings, and seeking legal assistance; let alone the time to be aware of legal procedures or even the existence of a court such as the EACJ. Thus, there is a need of applying the time limit rule with more logic.

Third, looking at the nature of cases received by the EACJ since its inception, the Court has been failing to attract traders due to its remedial powers and other related pitfalls.[8] In having a two months’ time limit for lodging a complaint, traders in the region will keep-on boycotting the Court and find other more favourable avenues to solve their disputes. Thus, by harshly interpreting article 30(2) EAC Treaty, the Court does not help its course of making traders bring commercial-related disputes before it.

Fourth, Rule 4 of the EACJ Rules of Procedure allows the Court to extend time in all procedural matters. Time-limits are also matters of procedure that judges should take note of and apply the rule for the benefit of individual litigants. It is somewhat surprising to find EACJ judges not toiling enough to broadly interpret article 30(2).

Fifth, there is evidence that the doctrine of continuing violation is commonly used in other legal matters, including tort and environmental law.[9] It is unfound for the Court to declare that the doctrine of continuing violation is only relevant to courts with human rights jurisdiction. Looking at matters concerning contracts, clearly, their nature of violation can be continuous. Being a regional economic community court, it is expected that trade and contractual related matters will be handled to the Court. By strictly interpreting article 30(2) of the EAC Treaty, to the extent of not upholding the continuing violation doctrine, the Court might not receive many critical cases, and in this respect it might fail to attract traders.

Sixth, using the same thread of reasoning from EACJ judges that the EAC Treaty does not explicitly confer the Court with a mandate to extend the restrictive time-limit, one can advance an argument that the Treaty also does not prevent EACJ judges from extending time-limits. Even more so, another glance to article 30(2) finds a phrase ‘within the article’, meaning that the rule is only determined upon weighing all circumstances at present. Thus, the EACJ can extend time for lodging complaints depending on the situation at hand.

Conclusion

Article 30(2) EAC Treaty is a hurdle to private litigants before the EACJ. By maintaining and conservatively applying the provision, genuine intention of having direct individual access to the EACJ becomes meaningless. A more recent attempt disputing article 30(2) proved futile (Steven Dennis v AG of Burundi & Others), when FID held that article 30(2) EAC Treaty conforms established Community norms. Understandably so, the FID cannot rule contrary to the AD. This latest decision has dashed private litigants’ hopes of getting rid of the draconian time-limitation rule. Therefore, it is submitted that, in the future, the EACJ should provide an interpretation of article 30(2) EAC Treaty based on its object and purpose, as established in the Vienna Convention on the Law of Treaties (art 31(1)).

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; a public authority applies EU law; or a national court applies or interprets EU law.

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

On the applicability of the Charter to the UK

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

Consequently, it is surprising that under Section 5(4) of the European Union (Withdrawal) Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

On the protection of fundamental rights provided by the Charter and the ECHR

After Brexit, as provided by the European Union (Withdrawal) Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the European Union (Withdrawal) Bill is adopted) granting the same rights will not prevail over conflicting statutes.

Conclusion

On 13 July 2017 the Government of the UK published the European Union (Withdrawal) Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

On 26 June 2017, the Government of the United States of America issued a statement to inform that Syria appeared to be preparing a chemical attack, and to threaten the use of force if one took place. Earlier, on 28 May, the President of France similarly declared to be ready to use force as a reprisal against the use of chemical weapons by Syria. Both declarations followed the actual military intervention of 7 April, when the United States launched a missile strike against the Syrian airbase of Shayrat, claiming to be acting in response to an alleged chemical attack by Syrian forces in Khan Shaykhun.

Most commentators defined the attack as a clearviolation of international law, perpetrated in the absence of self-defence justification and without any Security Council authorisation, which – as detailed below – are the only two exceptions to the prohibition to use force foreseen by the UN Charter. Conversely, the vast majority of States condemned the use of chemical weapons allegedly used by Assad, but not the forcible countermeasure taken against it.

The Attacks in Khan Shaykhun and Shayrat and the Reactions of the International Community

With the bombardment of Shayrat on 7 April 2017, the US directly used force, for the first time, against the Syrian army. The US presented the attack as a reaction to the alleged use of Sarin gas by Syrian forces in an airstrike in Khan Shaykhun three days earlier. The parties to the conflict did not agree on the dynamics of the events and no independent investigation confirmed the use of chemical weapons by the Syrian government, despite the mandate of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism to monitor their use in Syria. The Organisation for the Prohibition of Chemical Weapons did find traces of Sarin in Khan Shaykhun, but could not state which party to the conflict was responsible for its use. The US and French intelligence blamed the Syrian Government for the attack, whereas Russia, and Syria itself, denied any responsibility of Assad’s Government.

The US attack was in fact criticised as an act of aggression by Syria, by its main allies in the area, Russia and Iran, and other States like North Korea. The legitimacy of the attack was firstly affirmed by the US and its allies in the area. Interestingly, most States not involved in the conflict criticised Syria for using chemical weapons, but not the US aggression in itself. US and French statements issued in the following months reiterated this position. This may suggest an acquiescence towards the legality of limited military interventions, or rather just a certain diplomatic tolerance for limited interventions, which are qualified as legitimate but not legal.

The prohibition to use force in international law and its exceptions

The prohibition to use force against the sovereignty of States is the cornerstone of the UN Charter, which prohibits the use of force at art. 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. The Charter foresees two limited exceptions: when the UN Security Council authorises States to take “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42), and on the ground of self-defence (art. 51). The prohibition was reaffirmed by the International Court of Justice in several cases, and it may amount to a jus cogens norm.

The analysis of the compliance of the attack with the UN Charter is therefore uncontroversial: the US did not claim self-defence or seek a Security Council authorisation. The attack was consequently carried out in violation of the Charter.

However, a school of thought advocates the legitimacy of a third exception to the prohibition to use force. In the absence of self-defence claims and Security Council authorisation, a military intervention would be legitimate to respond to gross violations of international law involving atrocities perpetrated against civilian populations. The debate on the existence of such an exception usually refers to doctrine of humanitarian intervention. This doctrine has no generally shared definition – let alone recognition – in international law, but it is considered a particular form of use of force in a foreign State, characterised by a) the purpose to stop or oppose mass atrocities; b) the lack of consent of the State c) the absence of a legal mandate from the UN Security Council. Humanitarian intervention does not have a clear legal basis or a defined scope, but it is considered to involve a major military commitment, which comprehensively addresses the humanitarian crisis. In addition, humanitarian intervention concerns mass atrocities against civilian populations, which have taken place in Syria during the conflict, but without provoking interventions. Thus, the case at hand would not fall within the debate on humanitarian intervention – which was not invoked by the U.S. to justify the attack. The attack of 7 April on the Syrian base of Shayrat would rather constitute a single episode of forcible countermeasure against the use of chemical weapons.

Forcible countermeasures in international law

In cases of international wrongful acts, international law allows affected States to adopt countermeasures, subject to various limitations (e.g., the existence of a breach, the need of a prior demand for reparation, the necessity to comply with proportionality), including the prohibition to use force, as clearly stated in art. 50 the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001. Thus, forcible countermeasures, sometimes referred to as reprisals, are in principle illegal under international law.

In the aftermaths of the 1998 NATO military intervention in Serbia, Antonio Cassese[1] – inter alia the first President of the ICTY – argued that a new international customary norm was in statu nascendi, modifying the status of the prohibition of forcible countermeasures in international law. According to this author, in cases of gross violations of human rights, the use of force as a countermeasure could be allowed, under certain conditions. Cassese acknowledged that this sort of derogation from the regulation of the use of force did not yet exist in international law[2] because of the lack of sufficient State practice, while there was already an opinio iuris ac necessitatis, given the diplomatic position of the majority of States concerning the NATO intervention.

Almost twenty years later, in the light of the development of the approach of States to the use of force, a consistent State practice did not evolve. The silence of States could arguably express an acquiescence to the adoption of forcible countermeasures against gross human rights violations. Even in this case, it would constitute an exception, and State practice does not show any crystallization of a similar customary norm.

In case of use of force without any Security Council authorisation, States have mostly relied on an extensive interpretation of the principle of self-defence. In contrast, States do not usually claim the possibility to use force as a reprisal for a violation of human rights.

Furthermore, in the last decades, the international community’s approach against military interventions like the bombing of Shayrat was strengthened by the criminalisation of the act of aggression. The crime of aggression was included in the Rome Statute of the International Criminal Court with a series of amendments at the 2010 Review Conference in Kampala. The ICC Assembly of States Parties is currently preparing to activate the Court’s jurisdiction over the crime. In its definition, the crime of aggression clearly covers actions like the 4 April attack on Syria.

Conclusion

To conclude, the statements against the use of chemical weapons by Syria raised the debate on the emergence of an opinion iuris allowing forcible countermeasures in case of gross violations of human rights. Still, the scarcity of State practice hinders the creation of a new customary norm which is capable to infringe the UN system of jus ad bellum. States do not seem ready to permit derogations from the prohibition to use force. In the lex lata, the bombardment of Shayrat, and the following threats to further use force against Syria constitute a clear violation of the jus ad bellum.

The absence of an explicit condemnation, without any consistent State practice, does not risk creating a customary derogation to the prohibition to use force as enshrined in the UN Charter with a new customary norm. Rather, it may suggest a certain diplomatic tolerance for limited interventions, which are sometimes defined as legitimate but not legal. This does not question the prohibition to use force, which is the key international rule to protect international peace and security.

[1]Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ [1999] 10(1) European Journal of International Law 23-30

[2] Antonio Cassese, ‘A Follow Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ [1999] 10 (4) European Journal of International Law 791-799; Bruno Simma, ‘NATO, the UN and the use of force: legal aspects’ [1999] 10(1) European Journal of International Law 1-22.

2- Basic features of the Commission for the Elucidation of Truth

The Decree 588/2017 sets out the rules for the creation, composition and functioning of the CET, although most of it is a literal transposition of the chapter 5.1.1. of the Final Agreement where the creation of a Truth Commission was agreed.

The Commission will be an autonomous, non-judicial and temporary body. It will have a three years mandate to perform its task, plus a previous six months period (to be calculated after the election of its commissioners) to organise and prepare its functioning (art. 1).

Its main goals are: to provide a thorough explication of the armed conflict, to promote the acknowledgement of victims and social coexistence, to contribute to the creation of a transformative environment for reconciliation and consolidation of democracy (art. 2).

Its mandate (art. 11) consists in investigating and clarifying:

gross human rights violations and violations of International Humanitarian Law perpetrated during the conflict, with a special focus on massive or systematic violations;

the collective responsibilities of both official and non-official actors;

the impact of the conflict in different spheres;

the historical context of the conflict, its root causes and its development;

the phenomenon of paramilitary violence;

the forced displacement of people and the plundering;

the relationship between the conflict and the drug trafficking;

the positive experiences of resilience and transformation in local communities affected by the conflict.

3- Some critical remarks

3.1- Timeframe

It is noteworthy that neither the Final Agreement nor the Decree fix an exact timeframe for this investigation: article 12 of the Decree states that it covers “the conflict”, but without specifying a conventional starting date. Moreover, it allows the Commission to deal with previous historical events, insofar as they help understanding the root causes of the conflict.

This decision allows a wide and complete investigation, but may cause some doubts and debates as to when exactly to fix its starting point.

In addition, the long duration of the conflict and the possibility to take into account even previous events may pose the risk of an overly broad mandate, which could entail difficulties in terms of providing a complete and satisfactory analysis of the conflict. This risk is even more important when considering the relatively short timeframe (3 years) in which the body is expected to conclude its work, as well as the fact that its activity is not limited to collect and examine information, but also encompasses other tasks, such as the creation of public spaces for the promotion of debate and acknowledgment (art. 13.2).

3.2- Transparency and effectiveness guarantees

The rules about the functioning of the CET pay a special attention to transparency and public monitoring of its work. This concern might be seen in the provision according to which the Commission shall adopt its own methodology and make it public (art. 14), in the obligation to inform society at least every six months about its activities (art. 13.11) and in the stress on the implementation of an outreach strategy and its links with mass media (art. 13.8). The Commission shall also adopt measures to create and preserve archives (art. 13.9) and give the widest dissemination of its final report once it is published (art. 13.5).

These provisions provide a guarantee that the activities of the Commission are accessible to victims, civil society and to every stakeholder in the peace process. They also favour a constant monitoring by these actors, thereby granting a stronger legitimacy to the mechanism and its good practices.

Lastly, the decision to create a follow-up committee after the publication of the final report (art. 32) is intended to facilitate the effective implementation of the recommendations that will be formulated in the final report. The creation of such mechanisms in other (few) transitional experiences[2] has proved to be an effective means to prevent the recommendations made by Truth Commissions from being just ink on paper.

3.3- Relevance of and for victims

The Introduction to the Decree and its Article 5 reiterate the idea that victims are a central concern in the peace process, by acknowledging the need to create the CET as soon as possible as a means to grant victims’ right to the truth.

Additionally, the Commission’s activity shall be focused on victims: the Decree states that its tasks encompass “creating… public hearing … with a view to hear different voices, the first being that of victims” (art. 13.2). It is also called to promote orientation to victims and affected communities that take part in the Commission’s activity (art. 13.6) and to develop a strategy enabling an active cooperation with victims’ organisations and their initiatives at the local level.

These provisions, together with the recognition of the positive effect of victims’ proposals for the elaboration of this Decree (as its Introduction states), show the active role that victims should and do have in the development of this transitional mechanism. Besides that, they confirm the will to enhance grass-root initiatives and to integrate them into the institutional transitional project.

3.4- Different venues for different truths

The Decree confirms the separation of the Commission from the judicial branch, as the Final Agreement already affirmed, by stating that the information gathered by this body shall not be sent to judicial authorities in order to charge somebody with a crime or to present evidence,[3] nor shall judicial authorities summon its transmission (art. 4).

In addition, the express focus on collective responsibilities (art. 13.2) and the exclusion of the practice of naming names[4] contribute to separate the object of the Commission’s investigation from judicial procedures.

These provisions prevent the possible infringement of the suspects’ defence rights, including the right not to incriminate oneself, which would be violated if their statements given before the CET were used within a trial. They also prevent the overlapping between the Commission’s activity and judicial investigations, and possible conflicts between them, as happened for instance in the peace process in Sierra Leone.[5]

Lastly, they make it clear that the Colombian transitional project encompasses different venues for different truths: a criminal jurisdiction to ascertain individual criminal responsibility for specific offences, and a Truth Commission for a wider, less constrained and victim-oriented analysis of the violent experience.[6]

4- Conclusion

The thorough design of the CET shows that Colombia has taken advantage of the advice of experts in the field and of the lessons learnt from other Truth Commissions. The wide mandate given to the Commission, the attention paid to transparency, effectiveness, victims’ participation and the separation from judicial investigations are positive features that may contribute to the success of this mechanism.

This forum for knowledge and acknowledgment will probably be a key element for the peace-building process and the reconciliation of the Colombian society.

[1] For an analysis of the peace process and of the main novelties of the Peace Agreement, see my previous post.

[3] This does not prevent the Commission from using documents that may be used as documentary evidence in a criminal trial (art. 4).

[4] This option was taken by very few Truth Commissions, such as those of El Salvador and Rwanda. In both cases it posed serious challenges to political stability, besides the problems related to the defence safeguards: P. Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’ (1994) 16 HRQ 597, 647 ff.

[5] The contrast between the Special Court of Sierra Leone and the Truth and Reconciliation Commission arose when Hinga Norman, who was standing trial before the former body, asked to give a public declaration before the Commission. The case, which posed significant problems as to the respect of fair trial rights, showed the lack of coordination – and possibly the mutual distrust – between the two institutions. See: M. Nesbitt, M. (2007). ‘Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How trials and truth commissions can co-exist’ (2007) 8(10) German Law Journal 977. For a more optimistic view about the relationship between the two institutions, see: W. Schabas, ‘A synergistic relationship: the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’ (2004) 15 CLF 3.

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

Bothbans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

It is these latter, more general, categories that cause consternation, particularly in light of recent mediareports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas’ book ‘AnIntroduction to the International Criminal Court‘. The closing date for registrations is 1 June 2017.

To register and for more information regarding the 2017 ICC Summer School, please visit their websiteand follow them on Facebook or Twitter.

Scholarship has been extensively exploring the theme of the capability of international justice to deter international crimes. At first, studies concerned the ad hoc tribunals,[1] then they focused on the International Criminal Court[2] (hereinafter ICC, or the Court). The ICC is considered to be a major tool by which the international community can deter international crimes. With “potentially unlimited geographic jurisdiction”,[3] the ICC raised higher expectations related to its power to deter atrocities worldwide.

Among scholars of different views, a general consensus can be identified, that is, despite skeptical or more optimistic approaches and findings, it is not possible, at the moment, to reach definitive conclusions about the deterrent power of the ICC, or of international justice in general. The reasons are to be found in the scarcity of data, given the relatively recent establishment of the Court, and in research methodology itself.[4]

This post will try to present the main aspects of the debate on the deterrent power of the ICC, and to offer an analysis of the use of the concept of deterrence in the ICC’s case law. It will show that the Court has consistently relied on deterrence as a key principle to determine sentences. In so doing, it has attempted to respond to the general expectations, even in the absence of certainty about the existence of a deterrent effect.

The deterrent effect of international justice: the main issues

The entire deterrence theory is based on the notion that the perpetrator is a rational actor who decides to perpetrate crimes following a cost-benefit analysis.[5] This is particularly questionable in the context of international crimes, where it is disputed whether the perpetration of atrocities implies the need to consider “the risk of prosecution against the personal and political gain of continued participation in ethnic cleansing and similar acts.”[6]

Deterrence is usually categorised as specific (dissuading the condemned individual to repeat the crime) or general (discouraging other people from engaging in the same conduct).[7] The particular nature of international crimes might raise a further aspect: “expressive”[8] or “social”[9] deterrence, which is possibly more effective than the “classic” or “prosecutorial” one. This angle, which can vary in the analysis of the authors but generally reflects the theory of positive general prevention, focuses on the “secondary stigmatising effects of the punishment”,[10] as “a consequence of the broader social milieu in which actors operate: it occurs when potential perpetrators calculate the informal consequences of law-breaking.”[11]

Jo and Simmons, focusing on the social angle and on certain categories of mens rea, submit that the deterrent effect of international justice varies according to the degree of accountability of the perpetrator and his/her interest in obtaining legitimacy. Consequently, state actors would be more deterrable than non-state actors.[12]

Furthermore, authors generally recognise that it is not the severity of the punishment which creates a deterrent effect but, rather, the likelihood of being prosecuted and condemned.[13] The issue is particularly relevant in international criminal law, in which uncertainty of punishment is inevitably higher than in it is in average national judicial systems. In Furundjiza, the International Criminal Tribunal for the former Yugoslavia plainly enunciated this aspect, together with the “expressive” value of an international judgment:

It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion.[14]

Deterrence in the practice of the International Criminal Court

Deterrence is not specifically mentioned in the Rome Statute which, instead, makes reference, in the Preamble, to the prevention of international crimes, as a consequence of putting an end to impunity. Prevention and deterrence are sometimes used as synonyms, but their meaning is not completely interchangeable. The former is indeed wider and encompasses the latter, as there are forms of preventing crimes that are not related to judicial deterrence. It is fair to assume, nevertheless, that the aim “to put an end to impunity” and, consequently, “to contribute to the prevention” of international crimes, comprises the concept of deterrence.

The approach to deterrence in the practice of the Court may be analysed from two aspects. First, is whether deterrence ought to be considered as a criterion in the selection of cases to prosecute. Second, is whether deterrence is a key factor to be taken into account in determining sentences. While the former assumption appears to have been dismissed by both the Appeals Chamber and the Office of the Prosecutor, the latter constitutes a consistent practice of the Court.

In Lubanga,[15] the Pre-Trial Chamber affirmed that, to strengthen the effect of deterrence, the Court should focus only on high-ranking perpetrators, as individuals who can “prevent or stop the commission” of international crimes. The Appeals Chamber rejected this view, observing that the deterrent effect of the Court would be guaranteed only by avoiding any a priori exclusion of certain categories of perpetrators “from potentially being brought before the Court”.[16] The Prosecutor’s policy paper on case selection and prioritisation, issued in September 2016, seems to confirm the approach of the Appeals Chamber, i.e., that the deterrent function of targeting high ranking perpetrators is questionable, and lower-ranking perpetrators should not be excluded from prosecution in virtue of a contested deterrent effect.

Concerning the use of deterrence in determining sanctions, on 22 March 2017, the Trial Chamber in Bemba, consistently with the Court’s previous practice in Katanga[17]and Al Mahdi,[18] recognised deterrence, in both its general and specific effects, as one of the primary purposes of sentencing:

The primary purpose of sentencing […] is rooted […] in retribution and deterrence. With regard, in particular, to deterrence, the Chamber is of the view that a sentence should be adequate to discourage a convicted person from recidivism (specific deterrence) as well as to ensure that those who would consider committing similar offences will be dissuaded from doing so (general deterrence).

Conclusions

The debate on the possible deterrent power of the ICC, and of international justice in general, is open and a growing scholarship has been investigating the issue with various and original methodologies. In the absence of any definitive evidence on the issue, the Court has been maintaining deterrence among the primary purposes of its sentences, but this latter has not, so far, influenced the prosecutorial strategy.

The topic deserves further reflection, as new findings may acquaint the practice of the Court, thus making the ICC an effective tool for the prevention of atrocities.

[1] David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’ [1999] 23(2) Fordham International Law Journal 12

[2] David Bosco, ‘The International Criminal Court and Crime Prevention: Byproduct or Conscious Goal?’ [2011] 19(2) Michigan State Journal of International Law 164

[13] Christopher W. Mullins and Dawn L. Rothe, ‘The Ability of the International Criminal Court to Deter Violations of International Criminal Law: a Theoretical Assessment’ [2010] 10 International Criminal Law Review.

[15]Lubanga (ICC-01/04–01/06–8), Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, paras. 54–5.

[16]Situation in the Democratic Republic of the Congo (ICC-01/04), Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, para. 73.